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TMI Blog2022 (1) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of the case, for want of jurisdiction and various other statutory reasons, and hence, the same may kindly be quashed and in any case, the impugned additions made there in are bad in law and on the facts for want of jurisdiction and various other statutory reasons and hence the same may kindly be deleted in full. 2. The Ld.CIT(A) erred in confirming the action of the CPC in making addition of ₹ 1,84,880/- on account of contribution of PF/ESI vide order dated 20.08.2021. The Action of the CPC and conformation thereof is bad in law and on facts of the case, for want of jurisdiction, principal of natural justice and various other statutory reasons and hence, kindly be deleted. 3. The appellant prays your honour indulgence to add, amend or alter of or any of the grounds of the appeal on or before the date of hearing. 3. The Registry has pointed out that the appeal of the assessee is barred by limitation by 21 days. The assessee moved an application for condonation of delay stating therein as under: 1. That in the aforesaid matter, the impugned order was passed by CIT(A) National Faceless Appeal Centre on 20.08.2021, which was received on 20.08.2021. Accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings. 6. That under these circumstances since during the period between 15.03.2020 to 02.10.2021 was to be excluded and the period was to be reckoned from 02.10.2021. Hence, the appeal was to be filed within the 60 days from 02.10.2021 i.e. on or before 01.12.2021, whereas, the appeal has been filed on 09.11.2021, accordingly the appeal is within time of extended period of limitation as prescribed by Hon'ble Apex Court. Prayer: It is, therefore, humbly prayed that this application may kindly be allowed by condoning the delay, following the judgment of Hon'ble Supreme Court of India, in the interest of justice and oblige. During the course of hearing, the ld. Counsel for the assessee reiterated the contents of the aforesaid application and requested to condone the delay. 4. In her rival submissions, the ld. Sr.DR, although, opposed the condonaton of delay in filing the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(va) of the Act, however, the said deposits were made prior to filing of return of income u/s 139(1) of the Act. 8.1 Identical issue with the similar facts have already been adjudicated by the various Benches of the ITAT. 8.2 In the case of Harendra Nath Biswas vs DCIT Koltaka, ITA No. 186/Kol/2021 for the A.Y. 2019-20, similar issue has been decided vide order dated 16.7.2021 by the ITAT B Bench, Kolkata. The Relevant findings have been given in para 4 of the said order, which read as under;- 4. We have heard both the parties and perused the record. First of all we do not countenance this action of the Ld. CIT(A) for the simple reason that the Explanation 5 was inserted by the Finance Act, 2021, with effect from 01.04.2021 and relevant assessment year before us is AY 2019-20. Therefore the law laid down by the Jurisdictional Hon ble High Court will apply and since this Explanation-5 has not been made retrospectively. So we are inclined to follow the same and we reproduce the order of Hon ble Calcutta High Court in the case of Vijayshree Ltd. supra wherein the Hon ble Calcutta High Court has taken note of the Hon ble Supreme Court decision in CIT vs. Alom Extrusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal of the assessee. 9. Similar view has been taken by the ITAT Hyderabad SMC Bench in ITA No. 644/Hyd./2020 for the AY 2019-20 in the case of Salzgitter Hydraulics Private Ltd, Hyderabad vs ITO vide order dt 15.6.2021. The relevant findings given in para 2 of the said order read as under:- 2. Coming to the sole substantive issue of ESI/PF disallowance of ₹ 1,09,343/- and ₹ 3,52,622/-, the assessee s and revenue s stand is that the same has been paid before the due date of filing sec. 139(1) return and after the due date prescribed in the corresponding statutes; respectively. I notice in this factual backdrop that the legislature has not only incorporated necessary amendments in Sections 36(va) as well as 43B vide Finance Act, 2021 to this effect but also the CBDT has issued Memorandum of Explanation that the same applies w.e.f. 1.4.2021 only. It is further not an issue that the forergoing legislative amendments have proposed employers contributions; disallowances u/s 43B as against employee u/s 36 (va) of the Act; respectively. However, keeping in mind the fact that the same has been clarified to be applicable only with prospective effect from 1.4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the statute Section 43(B)(b) to curb the activities of such tax payers who did not discharge their statutory liability of payment of dues, as aforesaid; and rightly so as on the one hand claim was being made under Section 36 for allowing the deduction of GPF, CPF, ESI etc. as per the system followed by the assessees in claiming the deduction i.e. accrual basis and the same was being allowed, as the liability did exist but the said amount though claimed as a deduction was not being deposited even after lapse of several years. Therefore, to put a check on the said claims/deductions having been made, the said provision was brought in to curb the said activities and which was approved by the Hon'ble Apex Court in the case of Allied Motors (P) Ltd. (supra). 21. A conjoint reading of the proviso to Section 43-B which was inserted by the Finance Act, 1987 made effective from 01/04/1988, the words numbered as clause (a), (c), (d), (e) and (f), are omitted from the above proviso and, furthermore second proviso was removed by Finance Act, 2003 therefore, the deduction towards the employer's contribution, if paid, prior to due date of filing of return can be claimed by the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 139(1), the same cannot be disallowed under section 43B read with section 36(1)(va) of the Act. 17. We further note that though the ld. CIT(A) has not disputed the various decisions of Hon ble Rajasthan High Court but has decided to follow the decisions rendered by the Hon ble Delhi, Madras, Gujarat and Kerala High Courts. Given the divergent views taken by the various High Courts and in the instant case, the fact that the jurisdiction over the Assessing officer lies with the Hon ble Rajasthan High Court, in our considered view, the ld CIT(A) ought to have considered and followed the decision of the jurisdictional Rajasthan High Court, as evident from series of decisions referred supra, as the same is binding on all the appellate authorities as well as the Assessing officer under its jurisdiction in the State of Rajasthan. 18. In light of aforesaid discussion and in the entirety of facts and circumstances of the case, the addition by way of adjustment while processing the return of income u/s 143(1) amounting to ₹ 4,38,530/- so made by the CPC towards the delayed deposit of the employees s contribution towards ESI and PF though paid well before the due date o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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